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Case 1:05-cv-12237-WGY Document 550 Filed 06/26/2007 Page 1 of 5
AMGEN INC.,
Plaintiff,
Defendants.
_____________________________________________________________________________
Non-Party Fresenius Medical Care Holdings, Inc., d/b/a Fresenius Medical Care North
support of its Assented-To Motion for Leave to File Under Seal Documents Containing Non-
Party Fresenius’ Trade Secrets Which Were Submitted by Amgen in Connection With Amgen’s
Motion for Summary Judgment on Roche’s Antitrust and State Law Counterclaims, pursuant to
Local Rule 7.2 and the protective order in effect in this case. The confidential information
Fresenius seeks to file under seal is very limited and specific, and includes two sentences related
to discounts Fresenius obtained from Amgen. As set forth in the accompanying Declaration of
Administration for Fresenius Medical Services Division, Fresenius considers this information
extremely confidential and has protected it from public disclosure as a trade secret. Indeed, the
continued secrecy of this information is critical and disclosure in the public record would cause
Dockets.Justia.com
Case 1:05-cv-12237-WGY Document 550 Filed 06/26/2007 Page 2 of 5
Fresenius financial and competitive damage. This information constitutes Fresenius’ trade
I. Background
Fresenius is a major supplier of products and services for individuals with chronic kidney
failure. Fresenius operates more than 1,500 outpatient dialysis clinics in the U.S., and is also a
major supplier of a variety of dialysis products and equipment, including dialysis machines,
dialyzers and other dialysis-related supplies. As part of its business, Fresenius is a customer of
Amgen Inc. (“Amgen”) and purchases Epogen™ from Amgen for use in treating patients. The
prices at which Fresenius purchases Epogen™ from Amgen is governed by a Sourcing and
Supply Agreement between the two entities. The Sourcing and Supply Agreement that sets the
price at which Fresenius currently purchases Epogen™ from Amgen, including the discounts
available to Fresenius, was executed in October of 2006 (“2006 Epogen™ Sourcing & Supply
Agreement”).
II. The Information in Exhibit 4 to the Fraser Declaration Is Confidential and Trade
Secret Information, Not Publicly Available, And Would Cause Harm to Fresenius If
Revealed
Exhibit 4 of the Declaration of James M. Fraser in Support of Amgen’s Motion for
Summary Judgment on Roche’s Antitrust and State Law Counterclaims filed by Amgen on June
15, 2007 (“Fraser Decl. Exhibit 4”), (Docket No. 521) is a declaration of Mats Wahlstrom
America. The Wahlstrom Declaration describes certain terms of the 2006 Epogen™ Sourcing &
Supply Agreement between Amgen and Fresenius. Fresenius designated the Wahlstrom
Declaration highly confidential in its entirety. Fresenius is now seeking the further confidential
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Case 1:05-cv-12237-WGY Document 550 Filed 06/26/2007 Page 3 of 5
discounts available to it under the 2006 Epogen™ Sourcing & Supply Agreement with Amgen.
Fresenius considers the discount structure of the 2006 Epogen™ Sourcing & Supply Agreement
to be confidential and has taken pains to ensure that such information is not made public. See
disclosure of the discount terms of the 2006 Epogen™ Sourcing & Supply Agreement would be
extremely harmful to Fresenius as competitors could use this information to their advantage in
negotiations with Amgen and in formulating pricing and other competitive strategies. This
Mass. Gen. Laws ch. 255, § 30(4). A trade secret may consist of “any formula, pattern, device or
compilation of information which is used in one's business, and which gives him an opportunity
to obtain an advantage over competitors who do not know or use it.” CVD, Inc. v. Raytheon Co.,
769 F.2d 842, 850 (1st Cir. 1985)(citing Eastern Marble Products Corp. v. Roman Marble, Inc.,
372 Mass. 835, 364 N.E.2d 799, 801 (1977)). The information at issue here is a “compilation of
information,” allowing Fresenius to obtain an advantage over its competitors who do not have
This type of information has been protected as trade secrets by courts. United Rug
Auctioneers, Inc. v. Araslen, 2003 WL 21527545 (Mass Super. Ct. 2003) (finding pricing
1
Specifically, Fresenius seeks leave of this Court to protect the third and fourth sentences of
Paragraph 8 of the Wahlstrom Declaration by redaction.
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Case 1:05-cv-12237-WGY Document 550 Filed 06/26/2007 Page 4 of 5
information and finances confidential and trade secrets); SI Handling Sys., Inc. v. Heisley, 753
F.2d 1244, 1260 (3d Cir. 1985) (noting internal information related to pricing and profit margin
“is not information that is readily obtainable by anyone in the industry” and thus “qualifies for
trade secret protection”); Corporate Relocation, Inc. v. Martin, 2006 U.S. Dist. LEXIS 69098, at
*61 (D. Tex. Sept. 12, 2006) (holding pricing and profit information warrant protection from
public disclosure); J.W.S. Delavau Co. v. Lederman, 26 Phila. 338, 348 (Pa. C.P. 1991) (finding
cost of goods sold, among other information, to constitute trade secrets entitled to protection).
Moreover, the power of a trade secret is built upon its secrecy. CVD, Inc., 769 F.2d at
850. In other words, the party seeking to protect certain information must be able to demonstrate
that reasonable steps have been taken to keep the information secret. Trent Partners & Assocs.
v. Digital Equip. Corp., 120 F. Supp. 2d 84, 111 (D. Mass. 1999). Here, Fresenius has kept
confidential the value of discounts and rebates it received under the supply agreement with
Amgen. See McGorty Declaration at ¶¶ 7-8. Fresenius has taken steps to keep this information
out of the public domain and keep the information confidential. Id. at ¶¶ 5, 7-8.
Finally, trade secret law is intended to maintain and promote standards of commercial
ethics and fair dealing. CVD, Inc., 769 F.2d at 850. If the information at issue was released into
the public domain, Fresenius expects it would be used by its competitors to unfairly gain an
advantage by informing their negotiation positions with Amgen and instructing the formulation
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Case 1:05-cv-12237-WGY Document 550 Filed 06/26/2007 Page 5 of 5
IV. Conclusion
For the foregoing reasons, Fresenius respectfully requests that its assented-to motion to
file under seal the two specific sentences contained in Fraser Decl. Exhibit 4 that are discussed
Respectfully submitted,
CERTIFICATE OF SERVICE
I hereby certify that this document, filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF).